On Filibuster, Hypocrisy Rules

JONATHAN CHAIT

Occasionally, circumstances force liberals and conservatives to swap positions, and the transition is inevitably awkward. For decades, liberals loathed the filibuster as anti-democratic, and conservatives embraced it to block progressive reforms like anti-lynching laws, healthcare reform and civil rights legislation. Now, however, conservatives in the Senate are trying to curtail the filibuster, with liberals desperately standing in their way. Both sides are trying to cloak their new stance in principle, but the new garments don't fit very well.

The liberal judicial lobbying group, Alliance for Justice, has tried to portray the filibuster as a "free speech" issue. It has even created a cartoon character, "Phil A. Buster," a cute, anthropomorphic megaphone. The free speech emphasis may be shrewd, but it's bunk. Filibusters, it's true, classically consist of endless speechifying to postpone a vote. But the "speeches" often consisted of reading from phone books or other arcana unrelated to the issue at hand. Anyway, everybody knows the real power of a filibuster is not to speechify but to force the majority to come up with 60 votes.

Conservatives, for their part, have argued that filibustering judicial nominations is unprecedented. Therefore, they say, their plan to stop judicial filibusters merely stops Democrats from doing something new. In fact, judicial filibusters have happened before, albeit infrequently. Republicans led a filibuster of a nomination for Supreme Court chief justice in 1968.

Conservatives have since resorted to even more exotic justifications. Clint Bolick of the pro-GOP Committee for Justice wrote in a recent memo, "The Constitution grants the executive primary power over judicial appointments while granting the Senate, as a body -- not partisan factions within it -- a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the executive."

But Bolick and his fellow conservatives didn't see any constitutional problem in the 1990s, when the GOP bottled up President Clinton's judicial nominees to keep them from coming to a vote.

So both sides are obviously disingenuous. The main question is: Are filibusters a good idea? The best argument for the filibuster is that it gives rights to political minorities and forces consensus. The best argument against it is that it thwarts democratic accountability. The majority should be able to enact its program so the voters can see if they like the results.

I find the latter view persuasive. Note, though, that although this rationale works well with normal legislation and appointments, it doesn't really apply to judicial nominations. If the public doesn't like the way a judge rules, we're still stuck with him for the rest of his life. Yet Republicans only want to ditch the filibuster for judicial nominations. They would leave it in place for everything else.

And this fits a pattern. The American political system has lots of unjustifiable undemocratic features. The Senate gives far more voting power to citizens of small states than to citizens of more populous states. The electoral college suffers from the same flaw, though to a lesser degree. The Senate denies representation to residents of Washington, D.C. House districts are gerrymandered in such a way that few people have a chance to vote in a competitive election, and throwing out the party in power is nearly impossible.

All these anti-democratic features happen to favor Republicans. The GOP would keep them all and go after the one anti-democratic feature that happens to stand in their way right now.